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February 26, 2014

"The Supreme Court and the Rehabilitative Ideal"

The title of this post is the title of this notable new paper by Chad Flanders now available via SSRN. Here is the abstract:

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual.  The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding.  Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.

My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history.  The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform.  Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement.  Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming.  At best, the state must get out of the way.  Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.

February 26, 2014 at 09:53 AM | Permalink


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"Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding."

One may stop the struggle. Just ignore the Supreme Court, their being know nothing lawyer dumbasses. Ignore them as one might a two year old throwing things around a room. The kid knows nothing, but is less of an idiot than our Supreme Court,certainly less disruptive. Let them send federal troops, that would be the start of negotiations with idiots. Those opinions are strictly expressions of personal feelings and mood swings. Most contradict the common sense that might be found in a Life Skills mental retardation class. One reason for the failure of the criminal law is that it is led by know nothing people, who cannot be fired. Not a single item of any single opinion has ever had external, scientific validation. They are like the slurred and rambling blitherings of a drunk. What a failing profession where its topmost elite are blithering idiots, fit only for ignoring.

By the time one reaches prison, by the time one has murdered people, one has shown a defect of internal morality and self restraint. Think of external structure as a wheelchair for a paralyzed person. No amount of rehab will ever make that person walk, because the physical apparatus is just missing. The handicap of the antisocial personality is invisible, but is no less real, as has been shown for 150 years. Making a paralyzed person climb steps is not only cruel, it is unrealistic, on the order of a belief in Santa Claus, my famous cousin.

Posted by: Supremacy Claus | Feb 27, 2014 12:53:27 AM

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